In July, Senator Maria Cantwell (D-WA), Chair of the Senate Committee on Small Business & Entrepreneurship released a report entitled, 21st Century Barriers to Women’s Entrepreneurship highlighting three key areas that need improvement for women business owners: access to the federal market, access to capital, and access to business counseling and training. According to the report women-owned businesses are a $3 trillion economic force and support 23 million jobs but still face significant barriers compared to their male-owned counterparts when it comes to obtaining loans and growing their businesses.

Women entrepreneurs account for just $1 out of every $23 in small business lending, despite representing 30 percent of all small companies. Women also are more likely to be turned down for loans or receive less favorable terms than men, according to the report.

Other significant challenges faced by women are highlighted in the report, including:

Access to lending: Women receive just 4 percent of the total value of all conventional small business loans, and only 7 percent of venture capital funding. In addition, women face difficulty in getting right-sized loans that fit their needs. “Women are forced to rely on personal credit, loans from family and friends, and credit with high interest rates instead of getting traditional bank lending,” Cantwell said.

Equal access to federal contracts: The federal government has never met its goal of awarding 5 percent of contracts to women-owned businesses – a goal enacted by legislation 20 years ago. This results in women-owned businesses missing at least $4 billion annually in contracting opportunities.

Getting relevant business training and counseling: The SBA-operated Women Business Center program was created to help support women-owned businesses get off the ground and has successfully provided training to thousands of women entrepreneurs each year. But Congress has not provided new funding for the program since 1999, despite an increasing need.

The report recommends three remedies to improve the business climate for women entrepreneurs:

Modernize and expand the SBA’s Microloan Program to reach borrowers that need up to $50,000, and reauthorize the Intermediary Loan Program to allow more women to access capital between $50,000 and $200,000.

Enact legislation that would allow sole-source contracting to women-owned businesses through the Women-Owned Small Business Procurement Program, which would give them the same access to federal contracts as other disadvantaged groups.

Reauthorize the Women Business Center program, which issues grants to nonprofit organizations to provide specialized counseling and training, and increase funding to potentially help more women entrepreneurs, especially in low-income areas. The program already has demonstrated success – Women Business Centers helped clients access more than $25 million in capital and open more than 630 businesses in fiscal year 2013.

If you support this legislation, you are urged to contact your Senator and encourage them to co-sponsor this legislation.

No, but you really should. We work with a number of small, minority business certification programs. For some programs we advise that its not necessary to retain a consultant or attorney because taking the time to read the instructions is enough. However, the 8(a) program is different. If you only follow the directions and instructions that the SBA provides, your application will be incomplete. We have received calls from individuals who are in their second year of applying for the 8a program! This is because not only are the instructions provided are incomplete, so are the checklists that SBA provides. If you prepare your application without the benefit of someone who knows and understands the program, you won’t know what information you are missing until after you’ve turned in your application. You will receive a letter from the SBA denying your application and detailing what additional information they require. Even if you provide everything requested in the letter it does not prevent SBA from requesting more information. The cycle of receiving letters from SBA and responding to those letters can add months and sometimes years to your application process.

Why should I hire DBE Direct to prepare my 8(a) Business Development Program Application?

We urge anyone who calls or emails us to shop around. We believe that after you’ve done your research, you will choose us to prepare your 8(a) application. There are 12 good reasons why you should hire us.

1. We are a law firm. We understand the 8(a) program not only from the perspective of one who prepares applications but also as a firm that individuals turn to when things go wrong. Because we know what can go wrong we can help you avoid those pitfalls in the application process.

2. Avoid fraud. The 8(a) certification preparation industry is unregulated. There are many reputable companies in the industry. But there are also unscrupulous individuals who are more than willing to take advantage of you. We hear from individuals all of the time who have paid thousands to have their application prepared and who received little or nothing in return. As members of the Florida and D.C. Bar Associations we are regulated and insured. We will not and cannot promise to provide a service that we can’t deliver.

3. Avoid fraud, part II. The preparation of your 8(a) application requires you to provide confidential information about you and your business. Who has access to that information? How it is stored? What safeguards are in place to safeguard your information? What recourse do you have if your information is lost or stolen? We are first and foremost a law firm. We routinely handle our clients’ most confidential matters every day. We have all of the insurance and other measure utilized by a typical law firm to ensure the safety of your confidential information. Moreover, at DBE Direct, your application is prepared by an attorney. From the moment you speak to us, the attorney-client privilege applies. We cannot divulge any information about your or your company to anyone without your approval. When your application is complete and you have been accepted into the program, all of your information including passwords and copies of documents are either returned to you or destroyed.

4. If we determine during your application process that additional documents are required, we can prepare them. We don’t supply generic forms that you fill out. We prepare your Bylaws, Operating Agreements, etc. not only to meet your business needs but to meet SBA requirements. A non-lawyer should never prepare these important legal documents for you since they have legal implications beyond the 8(a) program.

5. Once you’ve obtained your certification, we can continue to help you. We are often retained by clients to assist them in preparation of bid documents, joint venture agreements, teaming agreements, mentor-protégé agreements, business development and other services. Once we know and understand your business we will provide you with leads to government contracts, help you team with other clients and generally help you grow your business. Our goal is always to assist you in developing a successful and profitable business with the hope of continuing to provide you with legal services as your business grows.

6. Even if you don’t qualify or are not prepared to apply for the 8(a) program, we are familiar with other federal, state, local and private programs for small, minority and women owned business that can help you grow your business.

7. Unfortunately, things can wrong. We can represent you when they do. After you obtain certification, you may become involved in a bid protest, debarment procedures, or size challenge. You become aware of fraud by a competitor. In all of those instances, we can help.

8. We can help you no matter what state you live in. Where we can’t assist you because of local bar rules, we have contacts with other lawyers who can assist us in representing you.

9. We are accessible. When you call or email us, you will speak to an attorney or an attorney will return your call or email within 24 hours or less.

10. Our prices are competitive. We recognize that there are less expensive options for the preparation of your 8(a) application. In fact, we often urge potential clients to shop around. Other firms often post their rates on the internet which can give you an idea of what it will cost you to prepare your application. We believe that our fees reflect the amount work we perform on your behalf and which fairly compensates us for the value we deliver.

What is your fee for preparing my 8(a) application?

This is usually the first question that we are asked when potential clients reach out to us. (Sometimes it’s the only question!) We don’t publish our rates online for a variety of reasons. The most obvious reason is that each client is different and each situation is different. A client who needs a two-year waiver, for example, is going to be billed more than a client who does not. We are available to consult with any potential client via email or telephone to discuss their particular situation. Consultations are usually 15 minutes. If we are asked to give advice about a client’s particular situation or we run over the allotted time we ask for a small fee which is deducted from any fees when you retain us. To get an idea of what the preparation of an 8(a) application can cost you, search the internet. There are many companies who advertise their rates on the web. Just be careful. Often the fees quoted on the internet are not what you actually pay.

What if my 8(a) application is denied?

Your 8(a) application can be denied for countless reasons – - even if you hire a consultant. The letter you receive from the SBA will tell you the reason you were denied, what actions to take or what additional documents you must provide if you disagree with the denial. It is very important at this point to get help. If you prepared the application yourself, it is time to consider retaining someone to assist you. If you retained a consultant to prepare your package they should be able to help you decide what to do next. If they are unable or unwilling to assist you, call or email us. We are often retained at this stage of the process by individuals who self-prepared their application as well as those who hired consultants.

What you do after you receive your denial letter can be the difference between getting admitted into the program or having to wait a year to reapply. As attorneys, we are familiar not only with the rules and regulations but also the case law that governs the 8(a) program. If you ultimately end up appealing the SBA’s decision to deny your application, the administrative judge will limit his or her decision to only the documents in the “record” (the documents you’ve provided to the SBA). At the appellate stage, it is almost impossible to introduce new evidence. Therefore, it is very, very important that you retain someone (like us) who understands the evidence required to meet the standards to help you prepare your response to your denial letter. When we prepare your response, we not only think about what the SBA is asking but also what we need to provide so that you are in a position later on to win your appeal.

In late 2011, the Small Business Administration rolled out the Women Owned Small Business (WOSB) and Economically Disadvantaged Women Owned Small Business (EDWOSB) Programs. It had taken over a decade to realize an idea that had been first authorized by Congress in 2000. At the time, we, along with many of our clients, were very happy to see the new program come to fruition. However, shortly after the program began we noticed that where one door had opened another had closed.

Specifically, in 2012, we started seeing increased scrutiny and outright denials our clients’ applications for 8(a) certification based on gender alone. When the following paragraph appeared in one of our client’s denial letters it was clear what had happened – - the creation of the WOSB program had closed the door on women applying for 8(a) certification.

Please note that SBA has a Woman Owned Small Business (WOSB) contracting program where women are considered socially disadvantaged and do not have to meet the “preponderance criteria”. For more information and application procedures please visit www.sba.gov/wosb. You do not need to apply for 8(a) in order to take advantage of the WOSB program.

Along with that statement, the SBA provided a memo entitled “Preponderance of the Evidence” which details what kind of evidence a woman needs to provide in order to get 8(a) certification. In the SBA’s Preponderance of the Evidence Memo, they state the following regarding what types of evidence can be used to assist in meeting the burden of proof:

Documentary evidence which corroborates or supports assertions made by an owner regarding specific incidents of a pattern of discrimination. Such documentation includes these items:

Documents setting forth company policy(ies) which are alleged to be discriminatory.

There’s only one problem with the SBA’s statement – in our opinion, it’s completely wrong! To understand why the SBA is wrong, I have to go into a discussion of some legal terms. In the legal field there are three standards of proof. The highest standard of proof is “beyond a reasonable doubt”, which you may have heard about in the criminal law context. Beyond a reasonable doubt means you have to convince the person making the decision that there is no chance that what you are trying to prove is wrong. The reason this standard is used in the criminal context is because people’s lives are at stake and we as a society want to make sure that there’s no chance or very little chance that we are convicting the innocent.

The next standard of proof is “clear and convincing”. In layman’s terms clear and convincing means that your word is not enough. There must be other documented proof to support the thing you are trying to prove.

Finally, there is the “preponderance of evidence” standard. It is the lowest standard requiring the least amount of proof. An uncorroborated sworn statement meets the preponderance of the evidence standard.

Here’s the problem. What the SBA has done is make it harder for women to obtain 8(a) certification by raising the standard of proof from a “preponderance of the evidence” to “clear and convincing” evidence. What makes this particularly disturbing is that the regulations used to require clear and convincing proof. This was specifically changed by Congress.

As a result of the SBA’s stance we no longer recommend that clients apply for certification based on gender alone unless they can show by clear and convincing evidence that they have been discriminated against. We know that some of our competitors have raised their fees to handle gender based 8(a) certifications. Others continue to claim that the can get women-owned businesses 8(a) certified. Based on our experience, we know that it’s just not that easy. If you have a question about whether your women-owned firm qualifies for 8(a) certification, give us a call.

Applying for 8a certification is not easy. If you follow only the rules found on the SBA’s website you are almost guaranteed to be denied. The following are some of the most common fatal mistakes we see on the SBA 8a applications we review:

Mistake #1

Sign and notarize every document where indicated. It sounds simple but you must sign, date and/or notarize every document indicated by the SBA. If not, the application will be returned costing you precious time.

Mistake #2

Double check your responses to every question even if you have someone else prepare your application. You are solely responsible for the answers and documents that you provide to the SBA. If you answer certain questions incorrectly or inaccurately you can and will be denied certification.

Mistake #3

Respond truthfully to every question. For example, if you were arrested at age 14 but the record was expunged you must still answer “Yes” when asked if you were ever arrested. The SBA will conduct a background check on you and will check your credit. If the SBA determines that you answered untruthfully to any question you can be denied.

Mistake #4

You shouldn’t own more than one company if you are applying for 8a certification. You should divest yourself of any interest in other companies or reorganize your ownership interests long before you apply for 8a certification.

Mistake #5

Make sure your financial documents show a positive cash flow. If your balance sheets show a negative cash flow or if your taxes show a loss this indicates that your company has little opportunity for success in the 8a program. Consequently, you can be denied certification on that basis.

Mistake #6

Be certain that the NAICS Code you use on your taxes and other documents matches the NAICS for which you seek certification. If the NAICS codes don’t match, SBA can make a determination that you lack experience in the particular NAICS code you are seeking certification.

Mistake #7

Make sure that figures you enter in the Form 413 personal financial statement are accurate at the time you apply. You will also need to provide documentation to support every number you enter on the form. For example, if you indicate that you have $500 in savings, you will need to provide a copy of your savings account statement showing $500 in the bank.

Mistake #8

Don’t partner with former employers. When you accept former employers as a partner in your new business, you risk the SBA finding an affiliation between you and your former employer. If the SBA determines that an affiliation exists between the companies, you can be denied 8a certification.

Mistake #9

Diversify your client base. If the SBA determines that your derive 70% or more of your income from a single private (not government) client, the SBA can deny your application.

Mistake #10

Don’t do business with family members who are or were participants in the 8a program. Although the rules have changed, the SBA can still deny your application if it deems that your business is affiliated with a family member’s business who is currently or was a participant in the 8a program.

Please feel free to get in touch with me personally should you have any questions related to the 8a program. If you have made one of these mistakes discussed above with your application I encourage you to call me so that we can discuss your situation. It does not matter what state you live in or where you company is based. I will provide you with a FREE 15 minute consultation where we can go over your situation.